Canal & River Trust Statement on judicial review of ‘Guidance for boaters without a home mooring’

Posted by Waterway Watcher on August 2nd, 2013

At the Court of Appeal on 23 July 2013, Lord Justice Jackson confirmed the decisions of three previous judges not to give permission to argue four out of the five issues raised by Nick Brown in his claim for a judicial review of the Canal & River Trust’s ‘Guidance for boaters without a home mooring’.

Lord Justice Jackson acknowledged that the interpretation of one sub-section of the British Waterways Act (s.17(3)(c)(ii)) was not an easy matter and might benefit from further consideration.

Nigel Johnson, Legal and Corporate Services Director of Canal & River Trust commented: “The Trust agrees with the Judge that interpretation on that Act is not an easy matter, which is the very reason it issued its Guidance. The Guidance dates back to 2004 and we believe it has stood the test of time and is supported by the great majority of boaters who recognise the need for some limited regulation of mooring on increasingly congested waterways. The Trust is confident that when the High Court examines the Guidance in detail, its interpretation of the 1995 Act provisions will be upheld.”

Nick Brown raised his claim for judicial review in early 2012 but in litigation of this type he first has to get the permission of the courts to take it forward. This was refused on three previous occasions but at the fourth time of asking the Court of Appeal has given permission for arguments to be heard, on strictly limited grounds, on just one of the issues he raises. Mr Brown had sought in his claim to argue:

that it was unlawful for the Trust to issue any guidance on the issue of boaters without a home mooring

that the Guidance misinterprets s.17(3)(c)(ii) of the British Waterways Act 1995;

that the Trust may not use s.43 Transport Act 1962 to impose certain terms and conditions;

that the Trust might be in breach of boaters human rights under Article 8 of the European Convention on Human Rights; and finally

that in publishing the Guidance the Trust (or its predecessor British Waterways) was in breach of the Equality Act 2011.

Of these Lord Justice Jackson has only given limited grounds to consider the claim in the second point in the list above (that the Guidance misinterprets s.17(3)(c)(ii) of the British Waterways Act 1995).

The Judicial Review of the Guidance will not prevent any ‘section 8’ enforcement proceedings continuing as courts will decide on whether the requirements of s.17 (3)(c)(ii) have been met by reference to the facts of each individual case as the Guidance makes clear.